2015 IL App (2d) 140485 No. 2

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- 0485 Opinion filed February 6 , 2015

_____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff

- Appellee, ) ) v. ) No. 05

- CF

- 2797 ) AUGUSTINE T. MONTES , ) Honorable ) Robert K. Villa , Defendant

- Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE JORGENSEN delivered the judgment of the court , with opinion

. Justices McLaren and Birkett concur red in the judgment and opinion

. OPINION ¶ 1 Following a jury trial in abs entia , defendant, Augustine T. Montes, was convicted of attempted first

- degree murder (720 ILCS 5/8

- 4(a), 9

- 1(a) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/24

- 1.2(a )(2) (West 2004)) . He was sentenced to 26 years’ imprisonment for attempted murder and a concurrent 10

- year term for aggravated discharge of a firearm. On direct appeal, we affirmed defendant’s conviction. People v. Montes , 2013 IL App (2d) 111132

. ¶ 2 Ther eafter , defendant, with assistance of counsel, filed a postconviction petition pursuant to section 122

- 1 of the Post

- Conviction Hearing Act ( Act) (725 ILCS 5/122

- 1 (West 201 2 ) )

. Defendant raised claims of actual innocence , based on entrapment , and ineffective assistance of2015 IL App (2d) 140485

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- counsel. The trial court summarily dismissed the petition , and defendant appeals . For the reasons that follow, we affirm. ¶ 3 I. BACKGROUND ¶ 4 We provide a sum mary of the trial evidence here; a more detailed recitation of the evidence may be found in our prior decision. Montes , 2013 IL App (2d) 111132, ¶¶ 1

- 48. Further, we again note that defendant was not present at his trial. ¶ 5 On November 22, 2005, at around 12:30 p.m., Julian Ramos was walking to his girlfriend’s house in Aurora when he saw four people in a green Pontiac Bonneville pass him. One person exited the vehicle , and Ramos began to run. At some point, he turned around and saw someone about 35 to 40 feet away pointing a gun at him. The p erson wore a black , hooded sweatshirt and was heavyset (approximately 230 pounds) . Ramos saw a gun and then turned around and heard shots fired. He screamed “I ain’t no King,” and he continued running and climbed into a truck to hide. ¶ 6 At the time of th e shooting, Blake Pannell was working for the FBI as an informant. Pannell, who had committed several serious crimes and who was serving as the “enforcer” for the Aurora Latin Kings street gang, testified that he was with defendant, Quentin Moore, and Rub en Hernandez on the day of the shooting. Pannell testified that he was wearing a recording device given to him by the FBI. Moore drove the men in his green Pontiac Bonneville , and they went to spray paint over graffiti that rival gangs had painted in Lat in King territory . According to Pannell, d efendant noticed a man on foot (Ramos) whom he believed to be a member of the Insane Deuces, a rival gang. The men began plotting how to catch up with the man to shoot him; Pannell, however, testified that he was not plotting, because he was working with the government. Moore parked in an alley so that defendant could get out of the car and catch up2015 IL App (2d) 140485

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- with Ramos. Hernandez gave defendant the gun, and Pannell, Moore, and Hernandez stayed in the car while defenda nt exited. When d efendant returned to the car, he related that, when Ramos noticed him coming with his hood up, Ramos got scared and ran off. Defendant said that he knew exactly where Ramos was heading, and he then instructed Moore on how they could driv e to catch up with him. Defendant wanted to get to a location and park, so that they could ambush Ramos when he arrived. ¶ 7 Defendant wiped the gun with a towel, threw it on the backseat, and put the towel over it. Pannell, sitting on the other side, reache d over and, through the towel, pushed a button on the gun to remove the clip; he dragged the clip out and stuffed it between the seat cushions. Pannell explained that he did not know if a bullet was still in the gun’s chamber; by removing the clip he

remo ved any other bullets. He did so because he did not want anyone killed. When they arrived at the second location, defendant grabbed the gun, put it in his sweatshirt pocket, and exited the vehicle. Pannell saw defendant stand between two houses until Ra mos appeared. ¶ 8 At that point, Pannell’s cell phone, which was located in the same area as the gun clip, began to ring. When Pannell reached to pick up his phone, he noticed that Hernandez was looking back at him. Pannell thought that Hernandez saw the cli p, so he grabbed it and said “[defendant] doesn’t have the clip.” Hernandez told Pannell to go give it to defendant, in case
Ramos had a gun and tried to open fire on defendant. Pannell exited the car while Hernandez began trying to call defendant to let him know that he did not have the clip. About the same time, Ramos appeared, and defendant came out and fired at him. Pannell heard the gunshot and saw defendant fire. Pannell, holding the clip, started running across the street toward defendant, calli ng defendant’s name. Ramos was running away, screaming, “I’m not a King, I’m not a2015 IL App (2d) 140485

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- King, I’m not a King.” Pannell met up with defendant and said to him, “you have no clip, you have no clip,” and they ran back to the car. ¶ 9 When they got inside the car, def endant said, “I almost had him. I almost had him.” Hernandez said to defendant , “you better finish this since he’s seen us. You better kill that person.” They began driving to find Ramos, and defendant was going to “just gun him down.” As they neared a busy street, they saw that Ramos had stopped traffic and was in the middle of the street. B ecause there were several vehicles stopped on a major road , they abandoned their pursuit of Ramos and left to hide. They went to a friend’s home where they smoke d marijuana, defendant showered, and they waited for time to pass. Later, Pannell was dropped off at another friend’s house. He called his FBI contact and gave her the recording. ¶ 10 Portions of the recording were played for the jury , and a transcript was pr ovided to the jury to assist it while listening to the recording. Pannell identified voices on the recording. For example, at one point someone on the recording, who m Pannell identified as defendant, spotted Ramos and said “he’s a Dukie,” a derogatory sl ang word for an Insane Deuce. Pannell identified a voice that said “Damn, then he’ll see my face” as defendant’s voice. He identified a voice that said “You want a bandana” as Hernandez’s. He also identified a voice that said “You look like a bank robbe r” as his own. Pannell explained that, when defendant got out of the car the second time, after originally seeing Ramos, he wore over his face a black bandana that Hernandez had handed to him. Once he put it on, one could see only defendant’s eyes and pa rt of his forehead. Otherwise, defendant’s face just appeared black. Pannell identified defendant’s voice as saying, “Take a left. I know exactly how to catch him up ***.” Pannell identified and explained additional portions of the recording, including when defendant exited the vehicle, the sound of the gunshot, the sound of his own running as he got back into the car with defendant, and2015 IL App (2d) 140485

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- defendant saying “I had to bump that ‘nigga’ ” (which means kill him), “it was all over for him,” “I was chasin’, cha sing down the block,” and “I kept hearin’ click, click, click.” Pannell explained that he could be heard yelling defendant’s name (Augustine) and then Hernandez said “Come on hurry up. Give him the clip, Give him the clip.” Then Pannell opened the door and started running, yelling “Augustine” as he jumped out of the car. Pannell identified the point in the recording when they pulled up at their friend’s house and exited the car, the sound of the car doors, and the sound of defendant’s voice asking if he could take a quick shower. Pannell testified that he weighed a little less than 135 pounds at the time of the incident. Defendant, in contrast, was a “much bigger guy.” ¶ 11 The jury returned a verdict of guilty on both counts and signed a special interrogat ory, finding that defendant personally discharged the firearm. The court denied defendant’s posttrial motions and sentenced him to 26 years’ imprisonment for attempted murder and 10 years’ imprisonment (concurrent) for aggravated discharge of a firearm. We affirmed, holding that: (1) defendant was sufficiently admonished that trial could proceed in absentia if he did not appear; (2) sufficient foundation existed to admit the audio recording; (3) the court did not abuse its discretion in permitting the jury to use a transcript of the recording; and (4) the evidence was sufficient to establish that defendant s hot at Ramos. Montes , 2013 IL App (2d) 111132, ¶¶ 57, 69, 74, 81. ¶ 12 On January 29, 2014, defendant, through counsel, file d his postconviction petition , raising three issues. First, defendant raised a claim of actual innocence . He alleged that evidence bec ame available after trial that would have supported an entrapment defense

. Specifically, defendant attached an affidavit from Hernandez that essentially alleged that , in contrast to his trial testimony, Pannell was the driving force behind the shooting. According to2015 IL App (2d) 140485

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- Hernandez’s affidavit, Pannell, working as a government agent and using his influence as gang “enforcer,” gave defendant a gun and told him to watch for rival gangs. Hernandez told def e n da n t that Pannell had said that he thought that defendan t had not yet “ proved himself ” and that d e fendant might be beaten or killed. When a man from another gang walked by, Pannell “gesture[d]” to the group to follow ; defendant left the car to pursue the man , but subsequently returned when the man got away. A ccording to Hernandez, “Pannell does or says nothing to prevent the situation from escalating[,] but encouraged it.” They came across the individual again and tried to park to let defendant out of the car. Hernandez turned around and saw defendant try ing to con ceal the clip of ammunition in the seat cushions . W hen defendant subsequently exited, Pannell noticed that defendant did not take the clip. To avoid raising Pannell ’s suspicions, Hernandez yelled at Pannell to take the clip to defendant . Pannell left the car with the clip, and a single shot was fired. “I didn’t know if [defendant] fired the shot ***. ” According to Hernandez’s affidavit, Pan n e ll “induced and incited” the incident by possessing a firearm and putting everyone in a p ositi on to commit a crime. “That was Pannell[’s] intention from the beginning ***. ” Pannell placed defe ndant “in a horrible predicament” where backing
out m ight have cost him his life. Further, Pannell played his role as enforcer to the “ extreme ” by providin g guns, participating in crime s , imposing punishment , and “ influencing violence. ” Finally, Hernandez attested in the affidavit , “I was unavailable at the time, but I’m available to testify if needed.” ¶ 13 In addition, defendant attached an affid avit from his trial attorney, Timothy Mahoney, attesting that it was his understanding that Hernandez faced criminal charges i n “ several cases ” and was unavailable to be interviewed or called as a defense witness

.2015 IL App (2d) 140485

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- ¶ 14 Defendant next alleged in his petition that tr ial counse l was ineffective for not di scuss ing with him his right to seek a lesser

- included

- offense jury instruction , specifically on the offense of reckless discharge of a firearm ( as a lesser included offense of aggravated discharge of a firearm )

. Defendant alleged that the evidence supported the instruction, since Ramos testified that he ran for a “good second” before hearing a single gunshot, and Ramos did not know “what direct ion the sh ots were fired at him

. ” Defendant attached Mahoney’s affida vit attesting that at no point prior to or during trial did he discuss with defendant t he possibility of asking for a lesser

- included

- offense jury instruction. Further, to counsel’s knowledge, defendant was not informed by counsel or the court of his righ t to seek a jury instruction on a lesser included offense. ¶ 15 Finally, defendant alleged that trial counsel was ineffective for not seeking on his behalf a plea deal from the State. 1 ¶ 16 On April 29, 2014, the trial court summarily dismissed defendant’ s postconvi ction petition. Regarding defendant’ s actual

- innocence claim, the court found that: (1) the affidavits failed to establish with supporting facts that Hernandez was unavailable such that his testimony could be considered newly discovered; and (2) the trial evidence, even absent Hernandez ’s testimony , was such that defense counsel could have presented an argument that defendant was ordered to act by an FBI informant , and therefore Hernandez’s testimony was not new, noncumulative evidence that was so conclusi ve that it would probably change the result on retrial. Regarding defen da n t’s ineffective

- assistance claim premised on the lesser

- included

offense instruction, the court found that it failed because: (1) defendant forfeited the issue by not raising it on direct appeal; (2) defendant failed to attach his own affidavit asserting that he would

1 Defendant abandons this claim on appeal and, therefore, we do not address it further.2015 IL App (2d) 140485

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- have demanded the submission of a lesser

- included

- offense i nstruction; and (3) defendant failed to establish that any error prejudiced him. Defendant appeals. ¶ 17 II. ANA LYSIS ¶ 18 “In a postconviction proceeding, the trial court does not redetermine a defendant’s innocence or guilt, but instead examines constitutional issues which have escaped earlier review.” People v. Jones , 399 Ill. App. 3d 341, 356 (2010). The postconviction setting does not act as a substitute for or an addendum to a direct appeal. Id. At the first stage (as here) for adjudi cating a postconviction petition, the trial court considers, without input from the State, whether the petition is “frivolous or is patently without merit.” 725 ILCS 5/122

- 2.1(a)(2) (West
2012 ). A claim is frivolous or patently without merit where it has no “arguable basis either in law or in fact.” People v. Hodges , 234 Ill. 2d 1 , 16 (2009). A petition lacking an arguable basis in law or in fact is one “based on an indisputably meritless legal theory” or a fanciful factual allegation. Id. Where the petition’s allegations are contradicted by the record or are fantastic or delusi onal , the petition should be dismissed. Id. at 16

- 17. We review de novo the dismissal of a postconviction petition at the first stage. People v. Brown , 236 Ill. 2d 175, 184 (2010). ¶ 19 Defendant argues first that the trial court erroneously dismissed his ac tual

- innocence claim , because Hernandez’s affidavit supports an arguable entrapment defense. We disagree

. D efendant has forfeited an entrapment defense. See People v. Fleming , 50 Ill. 2d 141, 144 (1971) (a n entrapment defense must be raised at trial or it is forfeited ). Further, as discussed below, the entrapment defense contemplates that a defendant was induced to act by a government agent; therefore, the defense is unavailable to a defendant who denies committing the offense. Id. Here, d efendant did not list entrapment as a defense in his discovery answers, nor did he appear at trial to admit to the shooting or to raise the entrapment defense

. Trial2015 IL App (2d) 140485

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- counsel did not , in defendant’s absence, raise entrapment as a defense, nor could he with out defendant’s consent, as the defense required defendant to admit to the offense

. Defendant has never raised an ineffective

- assistance claim that trial counsel failed to present an entrapment defense

. On direct appeal, defendant did not raise entrapmen t, and he has not alleged ineffectiveness by appellate counsel for failing to raise the claim on direct appeal

. Accordingly,

w e conclude that defendant’s attempt to raise entrapment for the first time in a postconviction setting must fail . The entrapment defense is forfeited. See also People v. Davis , 2014 IL 115595, ¶ 13 (in a postconviction setting, issues that were raised and decided on direct appeal are barred by res judicata , while issues that could have been raised on direct appeal, but were not, are forfeited). ¶ 20 W e could end our analysis t here. However, we suspect that defendant would respond that he could not have raise d the entrapment defense at trial , because the evidence suppo rting that defense, i.e. , Hernandez’s testimony, was unknown and unavailable at the time of trial. It is purportedly for that reason that defendant seeks postconviction relief, styling his claim as one of actual innocence based on newly discovered evidenc e supporting an entrapment defense . For the following reasons, we conclude that, even if the entrapment defense was not forfeited, defendant’s postconviction actual

- innocence claim was nevertheless properly dismiss ed as an indisputably meritless legal the ory . ¶ 21 P o stconviction petitioners may assert a claim of actual innocence only where the basis of that claim stems from newly discovered evidence. People v. Ortiz , 2 3 5 Ill. 2d 319, 333 (2009). A court should grant relief only where the petitioner present s supporting evidence that is new, material, noncumulative, and, critically, of a character so conclusive that it would probably change the result on retrial. People v. Coleman , 2013 IL 113307, ¶ 84. Further :2015 IL App (2d) 140485

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- “New means the evidence was discovered after t rial and could not have been discovered earlier through the exercise of due diligen ce. [Citation.] Material means the evidence is relevant and probative of the petitioner’s innocence. [Citation.] Noncumulative means the evide nce adds to what the jury h eard. [Citation.] And conclusive means the evidence, when considered along with the trial evidence, would prob ably lead to a different result. [Citation.] ” Id. ¶ 96. An actual

- innocence claim is “extraordinarily difficult to meet,” and courts of review rarely grant postconviction relief. Id. ¶ 94 (noting that only three reported cases had granted actual

innocence post conviction relief since 1996). ¶ 22 Finally, as to entrapment, the Criminal Code of 1961 provides: “A person is not guilty of an offense if hi s or her conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person. However, this Section is inapplicable if the person was
pre - disposed to commit the offens e and the public officer or employee, or agent of either, merely affords to that person the opportunity or facility for committing an offense.” 720 ILCS 5/7

- 12 (West 2004). Thus, to establish an entrapment defense, a defendant must show both that the State induced him to commit the crime and that he or she was not already predisposed to commit it

. People v. Placek , 184 Ill. 2d 370, 380

- 81 (1998). ¶ 23 We first reject d efendant ’s assertion that the information in Hernandez’s affidavit is new. Initially, we note that it is not clear that Hernandez’s testimony was una vailable at the time of trial and could not have been discovered through due diligence . It is true that Hernandez’s affidavit state d broadly that he was unavailable. However, n either Hernandez’s nor Mahoney’s2015 IL App (2d) 140485

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- affidavit set forth facts establishing that Hernandez was unavailable. The affidavits did not assert that Hernandez w as a co defendant in this case. Mahoney’s af fidavit stated only that he understood that Hernandez faced charges in “several cases.” It did not state that he tried to interview Hernandez and that , in fact, Hernandez would not speak with him. Moreover, nowhere in his affidavit d id Hernandez state th at, if he had been called to testify at defendant’s trial, he would have invoked his fifth

- amendment rights , thus rendering him unavailable

. ¶ 24 In any event, w e acknowledge that this is only the first stage of postconviction proceedings. Therefore, e ven if w e were to overlook the absence of facts supporting unavailability and accept that Hernandez was unavailable at the time of defendant’s trial , it remains that the factual bas is for the alleged entrapment defense i s not new .

“ Usually, to qualify as new evide nce, it is the facts comprising that evidence which must be new and undiscovered as of trial, in spite of the exercise of due diligen ce. Generally, evidence is not ‘newly discovered’ when it presents facts already known to the defendant at or prior to trial , though the source of those facts may have been unknown, unavailable, or uncooperative .” (Emphase s added.) People v . Barnslater , 373 Ill. App. 3d 512, 523 (2007). Here, we are not presented with a situation where the basis for the affirmative defen se remained

un discovered until after trial. See , e.g. , People v. Alberts , 383 Ill. App. 3d 374, 385 (2008) (postconviction claim of actual innocence based on involuntary intoxication proper where the law changed subsequent to the defendant’s trial , allowi ng for the defense to be applied to

unwarn ed side effects from p rescribed medication); see also People v. Hoban , 201 4 IL App (1st) 121540

- U (actual

- innocence claim proper where the defendant learned after his conviction that he had psychotropic side effect s from an allergy medication that he was taking at the time of the2015 IL App (2d) 140485

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- crime). In contrast, defendant here knew prior to trial the facts that he alleges would support an entrapment defense, i.e. , that Pannell was an informant, that Pannell gave him the gun, t hat Pannell encouraged the crime, and that he , defendant, was fearful that he would be beaten or killed if he did not comply. Defendant f ocuses solely on the fact that certain evidence from Hernandez , arguably showing that he was entrapped , was allegedly unavailable , but he ignores that he could have elected to appear at his own trial to testify to his entrapment defense. Certainly, a defendant’s failure to take the stand cannot be held against him. However, a postconviction actual

- innocence claim requir es new information or evidence discovered after trial that could not have been discovered earlier through the exercise of due diligence. As defendant knew the necessary facts prior to trial, the information in Hernandez’s affidavit might have lent additio nal support to that claim, but it is not new. ¶ 25 Next , the information in Hernandez’s affidavit is not conclusive such that, when considered along with the trial evidence, it would probably lead to a different result. If introduced at trial, Hernandez’s test imony would have cast doubt on the version of events to which Pannell testified. Hernandez’s testimony is not conclusive evidence of defendant’s innocence; rather, it simply contradicts trial testimony. See People v. Collier , 387 Ill. App. 3d 630, 637 (2 008) (noting that evidence that merely contradicts or impeaches a witness is typically not of such a conclusive nature so as to justify postconviction relief and, moreover, that t he hallmark of actual innocence is a defendant’s total vindication or exon era tion). Further, even with Hernandez’s testimony that Pannell induced defendant to act, the postconviction petition contain ed no affidavit or even allegations that would establish the second half of the entrapment defense, i.e. , that defendant, a Latin King s gang member, was not predisposed to commit the crime. Finally, it is critical to again note that entrapment is unavailable as a defense where the2015 IL App (2d) 140485

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- defendant denies committing the offense. Fleming , 50 Ill. 2d at 144. Here, as d efendant did not admit to the crime at trial, his postconviction petition fail ed to allege or attest that he committed the shooting, and Hernandez’s affidavit state d only that he d id not know if defendant was the shooter , defendant is precluded from raising entrapment as a defe nse . Accordingly, as it is indisputably meritless, the postconviction claim of actual innocence based on entrapment was properly dismissed. ¶ 26 Defendant challenges next the dismissal of his claim that trial counsel was ineffective for failing to discuss whet her he, defendant, wanted the jury instructed on the lesser included offense of reckless discharge of a firearm. At the first stage of postconviction proceedings, an ineffective

- assistance

- of

- counsel claim may not be dismissed if it is arguable that: (1) counsel’s performance fell below an objective standard of reasonableness (performance prong); and (2) the defendant was prejudiced (prejudice prong). Hodges , 234 Ill. 2d at 17 (citing Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984)). The performanc e prong requires us to consider whether, applying a strong presumption that counsel’s representation fell within the wide range of reasonable assistance (see Strickland , 466 U.S. at 689), there is an arguable basis to find that counsel’s performance was “o bjectively unreasonable under prevailing professional norms.” ( People v. Cathey , 2012 IL 111746, ¶ 23 ) . The prejudice prong requires us to ask whether there is an arguable basis to conclude that there exists a reasonable probability that, but for counsel ’s errors, the result of the proceeding would have been different. Id. The failure to satisfy either prong will defeat the ineffective

- assistance claim. People v. Williams , 193 Ill. 2d 306, 375 (2000). ¶ 27 Here, defendant correctly notes that only he could decide whether to submit an instruction on a lesser charge. See People v . Brocksmith , 162 Ill. 2d 224, 229

- 30 (1994) (it is the2015 IL App (2d) 140485

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- defendant’s decision, at the close of the evidence, whether to submit an instruction on a lesser charge) . It is for that very reason that defendant’s absence from trial leads us to conclude that there is no arguable basis to find that counsel’s performance fell below prevailing professional norms. Counsel is accused of ineffectiveness for failing to discuss with defendant whethe r to submit to the jury a lesser

- included

- offense instruction, but defendant was not present at trial for counsel to do so. Counsel could not submit a lesser

- included

- offense instruction without the opportunity to discuss it with defendant and without defendant’s consent. Id. at 230. Thus, by absenting himself from trial, defendant precluded counsel from fulfill ing the obligation to discuss with him the availability of a les ser - included

- offense instruction. ¶ 28 Further, defendant’s postconv i ction claim also fails to establish an arguable basis for concluding that there exists a reasonable probability that, if counsel had discussed with him a lesser

- included

- offense instruction, t he result of the proceeding would have been different. Defendant d id not allege that, if counsel had done so, defendant would have elected to submit the instruction. Accordingly, defendant’s postconviction petition was properly dismissed

. ¶ 29 III. CONCLUSIO N ¶ 30 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed

. ¶ 31 Affirmed

.